FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sutton & Barclay [2025] FedCFamC2F 575
File number(s): CAC 80 of 2024 Judgment of: JUDGE NEWBRUN Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – PARENTING – Best interests of child – orders made. Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 160 Date of hearing: 1-3 April 2025 Place: Parramatta Counsel for the Applicant: Mr Gabrial Solicitor for the Applicant: Mannion Lawyers Counsel for the Respondent: Mr Schroder Solicitor for the Respondent: Mark Brown & Associates Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
CAC 80 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SUTTON
Applicant
AND: MS BARCLAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The mother shall have sole decision-making responsibility for major long-term issues relating to care and welfare of X born in 2018 (“the child”).
2.The mother shall:
(a)notify the father of any proposed decision about a major long-term care issue in relation to the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the father about the proposed decision; and
(c)notify the father of her final decision, such notification to be given in writing within 14 days of the final decision being made.
Live with
3.The child shall live with the mother.
Spend time with
4.Unless otherwise agreed between the mother and the father in writing, the child shall spend time with the father as follows:
(a)commencing on the second Sunday following the date of these Orders, for a period of three calendar months, each alternate Sunday from 10:00am until 1:00pm;
(b)thereafter, for a further period of three calendar months, each alternate Sunday from 10:00am until 4:00pm;
(c)changeover on each occasion during the above six-month period shall occur adjacent to the entrance to B Venue and the time shall be spent at a park, play centre or shopping centre nominated by the father in the Suburb D area.
(d)thereafter, until the end of Term 1 in 2026, each alternate Sunday from 10:00am until 4:00pm;
(e)commencing on the first Saturday following the last school day of Term 1 in 2026, each alternate weekend from 10:00 am on Saturday until 4:00 pm on Sunday;
(f)commencing on the first Friday following the last school day of Term 4 in 2026 and until the commencement of Term 1 in 2027 school, each alternate weekend from 10:00 am on Friday until 4:00 pm on Sunday;
(g)changeover for the times provided for in subparagraphs (d), (e) and (f) above shall occur at C Service Station at Town…
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CaseChat Overview and Summary
The legal issues before the court included the allocation of decision-making responsibilities, the living arrangements for the child, and the specifics of the parenting time. The court was required to consider evidence on the child’s best interests, the parents' ability to provide for the child, and the child’s relationship with each parent. It also needed to decide on the logistics of time-sharing, health-related notifications, and communication between the parents.
The court ruled that Ms Barclay would have sole decision-making responsibility for major long-term issues relating to the child’s care and welfare. It mandated that she notify Mr Sutton of any proposed decisions about major long-term care issues and consider his views. The child was ordered to live with Ms Barclay, while Mr Sutton was granted specific visitation rights, which increased over time from Sundays to alternating weekends. Detailed arrangements were made for changeovers, locations, and additional time during school holidays and special occasions. The court also addressed health-related notifications, education, and communication between the parents, specifying the use of the “Our Family Wizard” app for non-emergency communication. Restraints were imposed on both parents to protect the child from exposure to denigrating discussions about the other parent. The father was additionally required to consult with specific medical professionals and attend to the child's medical needs. Finally, the court ordered the father to pay a portion of the Independent Children’s Lawyer’s costs.
Orders
Orders of the court
CAC 80 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SUTTON
Applicant
AND:
MS BARCLAY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
7 MAY 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The mother shall have sole decision-making responsibility for major long-term issues relating to care and welfare of X born in 2018 (“the child”).
2. The mother shall:
(a) notify the father of any proposed decision about a major long-term care issue in relation to the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b) take into consideration any views expressed by the father about the proposed decision; and
(c) notify the father of her final decision, such notification to be given in writing within 14 days of the final decision being made.
Live with
3. The child shall live with the mother.
Spend time with
4. Unless otherwise agreed between the mother and the father in writing, the child shall spend time with the father as follows:
(a) commencing on the second Sunday following the date of these Orders, for a period of three calendar months, each alternate Sunday from 10:00am until 1:00pm;
(b) thereafter, for a further period of three calendar months, each alternate Sunday from 10:00am until 4:00pm;
(c) changeover on each occasion during the above six-month period shall occur adjacent to the entrance to B Venue and the time shall be spent at a park, play centre or shopping centre nominated by the father in the Suburb D area.
(d) thereafter, until the end of Term 1 in 2026, each alternate Sunday from 10:00am until 4:00pm;
(e) commencing on the first Saturday following the last school day of Term 1 in 2026, each alternate weekend from 10:00 am on Saturday until 4:00 pm on Sunday;
(f) commencing on the first Friday following the last school day of Term 4 in 2026 and until the commencement of Term 1 in 2027 school, each alternate weekend from 10:00 am on Friday until 4:00 pm on Sunday;
(g) changeover for the times provided for in subparagraphs (d), (e) and (f) above shall occur at C Service Station at Town E;
(h) from the commencement of the 2027 school year, during school Terms, the child shall spend time with the father each alternate weekend from after school Friday (or 3:00pm if the Friday is not a school day) until 4:00 pm on Sunday;
School holiday periods
(i) during school the school holiday periods at the end of Terms 1, 2 and 3 in 2027, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Wednesday;
(j) during school the school holiday period at the end of Term 4 in 2027, the child shall spend time with the father:
(i) from 10:00 am on 26 December 2027 until 4:00pm on 30 December 2027;
(ii) from 10:00 am on 20 January 2028 until 4:00pm on 25 January 2028;
(k) from the commencement of the 2028 school year:
(i) during school the school holiday periods at the end of Terms 1, 2 and 3 each year, the child shall spend time with the father from 10:00 am on the first Saturday of the school holiday period until 4:00 pm on the following Saturday; and
(ii) during school the school holiday periods at the end of Term 4 each year, the child shall spend time with the father as follows:
A. in even numbered years, from 4:00 pm on 6 January until 4:00 pm on 25 January; and
B. in odd numbered years, from 4:00 pm on 24 December until 4:00 pm on 6 January;
Father’s Days
(l) notwithstanding subparagraphs (a) to (k) above, if Father’s Day falls on a weekend that the child is not already spending time with the father, the child shall spend time with the father on the Father’s Day weekend as follows:
(i) in 2025, from 10:00 am until 4:00 pm on Father’s Day;
(ii) in 2026 and thereafter, from 4:00 pm on the Saturday until 4:00 pm on Father’s Day;
Mother’s Days
(m) notwithstanding subparagraphs (a) to (l) above, if Mother’s Day fall on a weekend that the child is to be spending time with the father, the child’s time with the father on that weekend will be suspended from 4:00 pm on the Saturday until 4:00 pm on Mother’s Day and the child shall be returned to the mother’s care for those times;
(n) changeover for the times provided for in subparagraphs (j), (k), (l) and (m) above shall occur:
(i) at the child’s school if it is a school day; and
(ii) at C Service Station at Town E if it is not a school day;
Health
5. The mother shall:
(a) inform the father in writing as soon as practicable of:
(i) any specialist medical appointments including appointments with any orthodontist, periodontist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child;
(ii) the reason for such appointment having been made; and
(iii) the name and contact details of the specialist medical consultant with whom the appointment has been made;
(b) ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report; and
(c) ensure that the father is notified as practicable if:
(i) the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(ii) the child is involved in a medical emergency, together with the nature of the emergency and current location of the child;
(iii) the child will be required to take medication when she spends time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the child is to spend with the father.
6. The father shall ensure that the mother is notified as practicable if, while in his care:
(a) the child is admitted to hospital, together with the details of the hospital and the reason for the admission;
(b) the child is involved in a medical emergency, together with the nature of the emergency and current location of the child; and
(c) the child will be required to take medication when she returns to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following child’s return to the mother’s care.
7. THESE ORDERS AUTHORISE the child’s specialist medical consultant(s) to discuss the child’s medical conditions with both the mother and the father, separately or, if the mother and the father so choose, together.
Education
8. THESE ORDERS AUTHORISE any school which the child is attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the child.
9. Both the mother and the father are permitted to order and obtain school photos of the child, each at their own expense.
10. Both the mother and the father are permitted to attend:
(a) any school event relating to the child to which parents are ordinarily invited however they are to make separate appointments for parent/teacher interviews; and
(b) any of the child’s extracurricular activities to which parents are ordinarily invited.
Contact details
11. The mother and the father shall notify each other of any change to their email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of such change.
12. The mother and the father shall notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
Communication between the parents
13. Unless otherwise agreed in writing, the mother and the father shall communicate about matters relating to the care and welfare of the child using the following means:
(a) In cases of emergency, by telephone call or SMS text message;
(b) In all other cases, by use of the “Our Family Wizard” app.
14. Within 3 days of the date of these orders, the mother and the father shall do all things necessary to establish a subscription with the “Our Family Wizard” service and shall renew and maintain such subscription at all times.
Restraints and injunctions
15. The mother and the father shall:
(a) be restrained from:
(i) discussing these proceedings in the hearing of or presence of the child;
(ii) speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
(b) take all reasonable steps to prevent any other person:
(i) discussing these proceedings in the hearing of or presence of the child;
(ii) speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
16. The father is hereby restrained from consuming alcohol 48 hours prior to or during any time spent with the child.
17. The father shall:
(a) contact the rooms of Dr F and Dr G within 7 days of the date of these Orders and make appointments to attend upon each of them, at his expense and at the earliest available appointment time and for a second occasion in the first 3 months of 2026, for the purposes of further acquainting himself in relation to the medical needs of the child;
(b) follow all reasonable directions from Dr F and Dr G in relation to attending to those needs;
(c) notify the mother of:
(i) the date of his appointment with each doctor; and
(ii) the actual date of his attendance upon each of the doctors,
such notification to be in writing within 7 days of the appointments having been made and within 7 days of his attendance for the appointments.
18. The father shall pay the sum of $6,954 within three months in respect to his share of the ICL’s legal costs.
AND THE COURT NOTES THAT:
A. A requirement for notice to be given in writing shall be satisfied by notice given using the Our Family Wizard app.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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